In an earlier post, I wrote that Collingwood’s Integrity Commissioner, Robert Swayze, proposed two changes to the town’s Procedural Bylaw: amending section 13.7 and deleting section 13.8. Last post I dealt with the former; here I will explain my concerns about the latter.
Section 13.8 currently reads:
13.8 No vote – deemed negative – exception
Notwithstanding the provisions of Section 13.7 of this By-law, every Member who is not disqualified from voting by reason of a declared pecuniary interest shall be deemed to be voting against the motion if he/she declines or abstains from voting.
In other words, no member of council, board or committee can abstain from voting when at the table: everyone present has to vote or have the abstention counted as a negative vote.
This is partially derived from Section 246 of the Municipal Act, which reads
246. (1) If a member present at a meeting at the time of a vote requests immediately before or after the taking of the vote that the vote be recorded, each member present, except a member who is disqualified from voting by any Act, shall announce his or her vote openly and the clerk shall record each vote. 2001, c. 25, s. 246 (1).
Failure to vote
(2) A failure to vote under subsection (1) by a member who is present at the meeting at the time of the vote and who is qualified to vote shall be deemed to be a negative vote. 2001, c. 25, s. 246 (2).
So under the MA, you need to call a recorded vote to have an abstention deemed negative. That can get tedious. Other provinces don’t have this requirement. Saskatchewan’s guide for municipal councillors notes:
All Members Must Vote
Legislation requires every member of council including the mayor or reeve, to vote on every question. Members must not abstain from voting unless they have a pecuniary interest. If a member abstains from voting for any other reason legislation deems his or her vote as opposed to the motion. Minutes are required to record all abstentions from voting.
There’s a bit of confusion about rules of order and what rules to follow. Some people think our municipal meetings – including board and committee – are governed by either Robert’s or Bourinot’s Rules of Order. That’s incorrect: we are governed by the Municipal Act and our Procedural Bylaw. Council and all boards, committees and task forces created by the municipality are bound by the procedural bylaw.
Mr. Swayze wrote in his report to council:
In my opinion, all members of Council should be encouraged to declare a conflict, whether pecuniary or not, if the member feels that he or she cannot be impartial in voting on a matter. If for example, a member sits on the board of directors of a charity and awarding grants to the charity is before Council, the Councillor should declare a conflict, refrain from voting and such a declaration should not be deemed to be a vote against the charity. I have recommended in Appendix “D” that personal conflicts be added to section 13.7 and that 13.8 be deleted from the Procedural By-law.
Like in my previous post, my concern is in the implementation, not the intent.
I have had the personal experience of sitting on a board where the chair did not vote on a motion. Angry words were tossed about when I raised the Procedural Bylaw and that the abstention had actually caused the vote to fail.
This is because the chair erroneously believed the meeting fell under Robert’s Rules of Order, and interpreted those rules to assume the chair did not vote except to break a tie. But here’s what the RROO site says about the chair (president) voting:
Is it true that the president can vote only to break a tie?
No, it is not true that the president can vote only to break a tie. If the president is a member of the voting body, he or she has exactly the same rights and privileges as all other members have, including the right to make motions, to speak in debate, and to vote on all questions. So, in meetings of a small board (where there are not more than about a dozen board members present), and in meetings of a committee, the presiding officer may exercise these rights and privileges as fully as any other member. However, the impartiality required of the presiding officer of any other type of assembly (especially a large one) precludes exercising the rights to make motions or speak in debate while presiding, and also requires refraining from voting except (i) when the vote is by ballot, or (ii) whenever his or her vote will affect the result.
When will the chair’s vote affect the result? On a vote that is not by ballot, if a majority vote is required and there is a tie, he or she may vote in the affirmative to cause the motion to prevail. If there is one more in the affirmative than in the negative, the chair can create a tie by voting in the negative to cause the motion to fail. Similarly, if a two-thirds vote is required, he or she may vote either to cause, or to block, attainment of the necessary two thirds. [RONR (11th ed.), pp. 405-6; see also Table A, p. 190 of RONRIB.]
Abstention is allowed in Robert’s (Art. VIII, 46) but discouraged:
While it is the duty of every member who has an opinion on the question to express it by his vote, yet he cannot be compelled to do so. He may prefer to abstain from voting, though he knows the effect is the same as if he voted on the prevailing side.
But that does not apply to our municipality because our Procedural Bylaw says abstentions are counted as a negative vote. Without that, abstentions do not get counted in the tally of votes and the majority of the remaining votes carries the side.
One problem I see with allowing abstentions is procedural. A person who abstains can still be involved in the discussion, and therefore influence others – although not vote on the issue. Removing Section 13.8 allows that.
No mechanism is recommended to remove oneself from the table during the discussion.
This could become very contentious. I think if you allow members to abstain, you have to require them to leave the table (and the room) before the discussion. Mr. Swayze’s recommendation seems to allow the member to remain and participate in the discussion, but simply refrain from voting when the vote is called.
I believe declaring any sort of conflict – personal or pecuniary – should require absence from the table.
But for what reasons can a member abstain? Apparently for any. There are no guidelines or recommendations to guide abstention. One can abstain from voting for personal, social, religious, cultural or astrological reasons, it seems. Like the question of “personal conflict” I believe that this needs clarification and definition.
Also, Mr. Swayze suggests this abstention “should not be deemed to be a vote against” the issue. But under the Municipal Act, if any member calls a recorded vote, that abstention gets counted as negative.
I can foresee a time at council when some members abstain from voting, and a motion passes, then the losing side calls for a recorded vote and the result shifts to a defeat because of the additional negative votes. That’s not effective governance.
Imagine, too, this scenario: after a heated debate, it seems obvious there will be a 5-4 vote for an issue. However, at voting time, one of the members who argued vociferously for the issue abstains. The result is 4-4: a defeat.
Or similarly, a councillor wishes an issue returned to the table before a year has passed, requiring a yes vote of at least six members. Two of the nine councillors are on holiday, one votes no and one abstains: only five votes are cast in favour of re-opening. The issue cannot be re-opened until the full time has passed.
And what would happen if, say, four people abstain at once? A vote could be carried with a mere three yes votes (or defeated by three no votes) – far less than an actual majority of council. If five abstained, a mere two no votes could defeat it (tie votes are defeated motions). Is that really democracy in action?*
Another problem is ethical. We are elected to have opinions, to take sides, to make decisions. Abstaining strikes me as cowardly – as a way of avoiding the political fallout from an unpopular decision. If you’re at the table, if you participate in the discussion, you should have to vote.
To paraphrase a comment from another blog (unrelated to Collingwood), each time a member of council abstains from voting on issues, the citizens of Collingwood lose a voice and fair representation.
A salient point about responsibility is made on the Robert’s Rules of order for Dummies website:
It’s your duty to vote when you have an opinion about a matter being decided. By failing to vote, you allow others to make the decision, which is the same as having voted for the prevailing side. Whether you vote or not, you’re still in some way responsible for the decision that’s made.
* Abstentions don’t count when taking a vote, so if four abstained, that would leave five to vote. A majority of five is three, so three people at the table could determine town policy, laws, budget issues and governance.
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So an abstention – unless for a pecuniary confilct – is seen as a ‘no’ vote under the Municipal Act? I can hardly believe that is true. So, for example, if I have a personal conflict which gives me a vested interest in a ‘no’ vote, I can excuse myself and contribute to exactly that result (while claiming the moral high ground for having excused myself from the vote)? Tell me it ain’t so!
In general I think Mr Swayze has the right idea (but maybe the Municipal Act has a screw loose).
I don’t believe there is as much of a grey area over personal confilcts as you imply. When you see one you recognise it. Maybe the safest mantra is ‘If in doubt, sit out!’ We have nine votes around the table and should be able to accommodate the loss of one or two on occassions where conflicts exist.
An abstention is only a no vote in the MA if a recorded vote is called. Under the bylaw, however, it is a no vote at any time. So yes
If someone declares a conflict under the MCIA, then they must leave the table, so a vote isn’t counted for them. Only votes at the table count. However, there is no requirement to remove oneself from the table under a “personal” conflict as proposed.
As I said in both posts: it’s not the intent of the changes that I object to, but rather that the implementation appears to me to be lacking in detail.
As for your comment re conflicts “When you see one you recognise it.” That is fallacious. What you suggest is that personal interpretation is a better guide than the law. The point of the MCIA is to remove ambiguities from governance.
Once people choose to interpret the law, they will abstain for political reasons – not vote in contentious issues because they want to avoid political backlash. That is what often happens in higher levels of government (particularly in the USA where such political cowardice is rife).
Also, people easily misinterpret what constitutes a conflict. I swim at the pool: am I in conflict because I have a vested interest in its presence? I run a ukulele class at the library – am I in conflict because I have a vested interest in having room space there? Some people would say yes. The MCIA covers this, too. under the terms of general use.